Davison v. Plowman

United States District Court, E.D. Virginia, Alexandria Division

June 6, 2016

BRIAN DAVISON, Plaintiff,v.JAMES PLOWMAN, Defendant.

MEMORANDUM OPINION

JAMES
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE

Plaintiff
Brian Davison ("Davison") alleges that the
Commonwealth’s Attorney for Loudoun County, Virginia
violated his First Amendment rights by deleting his comment
from a local government Facebook page and blocking him from
posting additional comments. Davison seeks injunctive relief
undeleting his comment, restoring his ability to post new
comments, and enjoining Defendant from banning Davison in the
future. Defendant moves to dismiss this case as moot because
he has voluntarily provided the relief Davison seeks. For the
following reasons, the Court will deny the motion to dismiss.

I.
Background

Defendant
James Plowman ("Plowman") is the
Commonwealth’s Attorney for Loudoun County, Virginia.
(Compl. ¶ 3.) Part of Plowman’s job is to
supervise public relations regarding the Commonwealth’s
Attorney Office (the "CA"), including overseeing a
profile page about the CA on the social networking website
Facebook.[1] (Compl. ¶¶ 3-4.) The CA’s
Facebook page falls under the umbrella of Loudoun County
government websites intended to "present matters of
public interest in Loudoun County." (Compl. ¶ 4;
Social Media Policy [Dkt. 1-1].) Loudoun County’s
Social Media Policy encourages public participation on
government websites, but imposes some rules on the scope of
that participation. (Social Media Policy.) The Policy notes
that online comments are moderated and permits Loudoun
officials to delete comments that are "clearly off
topic, " "contain vulgar language, personal attacks
of any kind, or offensive comments that target or disparage
any ethnic, racial or religious group, " and other
prohibited comments.[2]

On
December 2, 2015, the CA began a media initiative on its
Facebook page called "Understanding the Law."
(Compl. ¶¶ 5, 8; December 2 Post [Dkt. 1-2] at 1.)
The goal of the initiative was to "increase the
public’s understanding of the criminal justice
process" by posting published articles online, beginning
with an article about special prosecutors. (December 2 Post.)
About two weeks later, Davison posted a comment on the
CA’s Facebook page describing a legal altercation he
had with members of Loudoun County Public Schools
("LCPS"). (Compl. ¶ 9.) Davison wrote that
LCPS failed to respond to his Freedom of Information Act
request and then LCPS "committed perjury by claiming
under oath" that it did respond. (December 2 Post.)
Davison wrote that there was "documented proof that
perjury occurred" and asked why Plowman had not assigned
a special prosecutor to investigate. (Id.) Davison
criticized Plowman’s decision not to assign a special
prosecutor by writing, "I guess that’s the benefit
of being elected. You really don’t have to answer to
anyone between elections, now do you." (Id.)
Davison also included this parting shot:

But hey, I’ve got an idea for you CA. Why don’t
you delete/censor this post, and then we can all go before a
federal judge in a 42 USC 1983 claim about free speech. What
do you say? I’m sure the Virginia Coalition for Open
Government, ACLU of Virginia, FOIA Resource Center and
Virginia Bar might be interested in this issue too.

(Id. at 2.)

On
December 28, 2015-ten days after Davison posted this
comment-the CA did just that; it deleted Davison’s
comment and notified Davison he was "banned or blocked
from posting any further comments on the Social Media
Page." (Compl. ¶¶ 10-11.)

Davison
contacted the CA on multiple occasions in an effort to
restore his deleted comment and his ability to post new
comments. (Compl. ¶¶ 12-13.) Davison’s
attorney similarly attempted to convince Plowman to cease
censoring Davison. (Attorney Letter [Dkt. 9-1].) Despite
those efforts, Plowman continued to block Davison’s
ability to post and refused to restore the deleted comment.
(Compl. ¶ 14.)

On
February 22, 2016-almost two months after Plowman deleted the
comment-Davison filed the present Complaint, alleging that
blocking his access and deleting his comment from a
government website violated his First Amendment right to free
speech. (Compl. ¶ 16.) The Complaint named Plowman in
his individual capacity and in his official capacity as
Commonwealth’s Attorney for Loudoun County, Virginia.
Davison alleges that Plowman either personally made the
decision to take the above actions against him or "when
made aware of those acts as head of the office, personally
adopted and ratified those acts by refusing to remediate the
constitutional violation." (Compl. ¶ 16.) The
Complaint seeks injunctive relief and attorney’s fees,
but does not seek damages or declaratory
relief.[3]

About
ten weeks after Davison filed this lawsuit-and about eighteen
weeks after the comment was deleted-Plowman voluntarily
restored Davison’s ability to comment on the CA’s
Facebook page and undeleted the December 18, 2015 comment.
(Def.’s Mem. in Supp. [Dkt. 6] at 2.) Davison has since
liberally exercised his restored access by posting at least
eleven new comments between May 3 and May 25, 2016.
(See Ex. 1 [Dkt. 12].) Many of Davison’s
comments are critical of Plowman and reference this
lawsuit.[4] Plowman has not deleted any of
Davison’s May comments.

On May
10, 2016, Plowman moved to dismiss this case as moot. That
motion was fully briefed and argued orally, and is now ripe
for disposition. As described below, the Court will deny the
motion.

II.
Legal Standard

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Federal
Rule of Civil Procedure 12(b)(1) permits a party to move to
dismiss a complaint for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). "[I]n passing on a motion to
dismiss, whether on the ground of lack of jurisdiction over
the subject matter or for failure to state a cause of action,
the allegations of the complaint should be construed
favorably to the pleader." Scheuer v. Rhodes,
416 U.S. 232, 236 (1974), abrogated on other grounds by
Harlow v. Fitzgerald, 457 U.S. 800 (1982). Article III
of the United States Constitution limits federal
courts’ jurisdiction to "Cases" or
"Controversies." U.S. Const., art. III. A
"case becomes moot- and therefore no longer a
‘Case’ or ‘Controversy’ for purposes
of Article III-when the issues presented are no longer
...

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